Free, Prior, and Informed Consent

Empowering Communities for People-Focused Conservation

June 12, 2014

Imagine subsistence hunters in Brazil, or farmers in the Andean highlands, or fishing communities in Cambodia. Each of these geographically disparate groups is among the indigenous peoples of the world whose livelihoods, cultures, and identities are intimately tied to the land on which they have lived for generations.

However, they do not only share this tie to their traditional land. Indigenous peoples’ rights to their land, territories, and natural resources have often been historically ignored or neglected when large-scale development or conservation activities, such as hydropower dams or protected areas, were being planned and implemented. Conservation and development activities have the potential to negatively or positively impact the rights of indigenous peoples, both at very small or very large scales.

Notably, data from the Global Environment Facility (GEF) shows that land under the management of indigenous peoples only makes up 20% of the world’s landmass and yet it holds roughly 80% of the Earth’s remaining biodiversity. This biodiversity and related traditional knowledge, which has been maintained, used, catalogued, and respected for thousands of years by many indigenous peoples, has the potential to maintain cultures, help agricultural systems adapt to a changing climate, offer medical solutions, and inspire awe. However, anything this traditional knowledge may offer the rest of the world, including the biodiversity it has maintained, must be provided with the consent of the indigenous peoples to which it belongs.

Founded in 1987, Conservation International (CI) has worked for more than 25 years to maintain biodiversity, build partnerships, improve livelihoods, and encourage good governance. Respecting the rights of indigenous peoples, and working in partnership with them, is essential to all of the work that CI does to empower societies to responsibly and sustainably care for nature for the well-being of humanity. Though there are many means of respecting rights, the principle of free, prior, and informed consent (FPIC) is one of the most important ways in which indigenous peoples’ right to self-determination is realized.

Rights and Realities

FPIC is, at its most basic level, the right of indigenous peoples to freely give or withhold their consent to any decision that will affect their lands, territories or livelihoods. To make this decision, they must be fully engaged in the process before decisions about the project have been made, and have access to information in a form and language they understand.

FPIC has evolved from the recognition and acknowledgment of several overlapping rights and realities. Foremost among these rights is the right to self-determination — the right to make one’s own social, economic, political, and cultural decisions—in essence, to determine the course of one’s own life. FPIC can also be tied to the right to own property collectively, the right to participate in cultural activities, and the right of religious freedom.

FPIC also recognizes the unfortunate reality that many indigenous peoples still face, including undue discrimination, higher rates of poverty, and less access to public or private infrastructure than others in the same country. According to the International Fund for Agricultural Development (IFAD), indigenous peoples make up only about 5% of the world population, but represent 15% of those living in poverty. In many countries, they are the most dependent upon natural resources as a direct means of survival. This includes livelihoods such as farming, animal husbandry, fishing, and gathering non-timber forest products. When access to these natural resources is restricted by development and conservation projects, it is more difficult, if not impossible, for them to maintain a standard of living equivalent to that of others in their country pursuing similar livelihoods. Due to the discrimination and lack of opportunity already placed upon them, the loss of their land and natural resources is often too great a cultural and financial burden from which to recover.

In addition to these sobering facts, FPIC also recognizes the positive realities of many indigenous peoples—their close spiritual and cultural ties to their lands, strong traditions of sustainable natural resource use, and communal land use plans that encompass current and future generations. One need only look at forest cover maps of the Amazon to see that indigenous peoples have a deep and clear understanding of the value of maintaining biodiversity. These maps often show a clear line between the lush forest cover of indigenous territories and the logged remains of neighboring land. The understanding, skills, and knowledge demonstrated by indigenous peoples make them a crucial ally for conservation organizations.

FPIC is a principle that takes into consideration rights, obligations, opportunities, and realities. Although many of the rights underpinning FPIC have broad international acceptance, FPIC as it is understood today has been under development for more than 20 years. A vital convention for the foundation and support of FPIC is the International Labour Organization’s Convention 169 (ILO 169). Adopted in 1989 and entered into force in 1991, ILO 169 is a legally binding convention dealing specifically with indigenous and tribal peoples’ rights, and due to its binding nature, has been used to win court cases protecting their rights.

In 2007, more than two decades after ILO 196 was ratified, the decades-long efforts of many individuals and organizations paid off, and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly. Of particular interest to the discussion on FPIC is the Declaration’s acknowledgement that control of their lands, territories, and resources enables indigenous peoples to strengthen and maintain their cultures while pursuing economic development in a way that best suits their needs. Although the Declaration is not legally binding, it has near universal adoption by countries and has emerged as an internationally recognized human rights standard.

FPIC is a complex principle that attempts to successfully incorporate international laws, human rights, and respect for indigenous peoples’ cultural, political and spiritual practices. The aim of this delicate melding of ideas is to create a process for indigenous peoples and their partners to successfully collaborate in a way that fully respects indigenous peoples’ rights. Whatever course the dialogue between the different actors follows, FPIC ensures that it is a path of respect.

The Foundations of Collaboration

What does FPIC look like in practice, and how does it work? Free, prior and informed consent, as a static, regulated principle does not exist, which in truth is one of its strengths. As there are infinite variations on communities, partners, and projects, an FPIC process should be designed in such a way as to be flexible and adaptable to each specific project. In general, an FPIC process outlines how different actors should engage with one another while respecting the rights of indigenous peoples. FPIC provides the foundation, and it is up to the different parties to create a process that works for their particular situation.

On a humid afternoon in 2011 in Georgetown, Guyana, the idea of creating FPIC guidelines for Conservation International began taking shape. Several CI staff gathered with members of the organization’s Indigenous Advisory Group (IAG), six experts on indigenous rights and climate change advising CI since 2009, for an annual meeting to discuss important issues facing both indigenous peoples and conservation groups. FPIC figured prominently on the meeting agenda.

CI and indigenous peoples had been successfully collaborating in good faith since the organization’s earliest days, but ensuring FPIC presented a way for CI to be explicit when creating respectful partnerships. As the conversations continued, those gathered concluded that there was a universal need for more guidance on FPIC, and that this guidance should be developed together with indigenous peoples. For CI, the Indigenous Advisory Group was the organization’s natural partner with which to advance this work.

Following the Guyana meeting, Conservation International and its Indigenous Advisory Group laid out an approach. To best incorporate indigenous perspectives in the proposed guidelines, the IAG would develop FPIC case studies based on projects or experiences in their home countries of Brazil, Guatemala, Guyana, Indonesia, Kenya and Panama. CI would also produce three case studies examining our projects that use conservation agreements, a model through which communities receive incentives for their conservation actions in a manner agreed to by all involved. Taken together, these nine case studies would then form the foundation of CI’s guidelines.

Over the next two years, eight of the nine FPIC case studies were completed, highlighting key elements to include, the challenges that must be addressed, and the resources that are needed for an FPIC process to succeed.

Stage 1: Gather Information

Rogeliano Solís González understands the importance of gathering information. As a biologist he has honed his skills for investigating, and as a science teacher in Panama’s indigenous Guna Yala region, he encourages his students’ curiosity about the world around them.

Mr. Solís is also the former secretary of the Guna General Congress, the governing body of the 49 Guna indigenous communities, and a member of CI’s Indigenous Advisory Group. His case study “Free, Prior and Informed Consent in Panama: The Guna Case, in the Context of its Autonomy” focuses on Guna Yala, describing how a local concept equivalent to FPIC is practiced in the indigenous territory along Panama’s Caribbean coast. He explains how the Guna use their traditional decision-making process to evaluate a possible REDD+ project for the region. REDD+ refers to Reducing Emissions from Deforestation and Forest Degradation, plus the role of conservation, sustainable management of forests, and enhancement of forest carbon stocks. Mirroring FPIC, Guna “decision-making is collective and reached by consensus” and “not a top-down approach.” This means that each of the 49 communities is consulted before making a final decision on the proposed project, providing time and space for community members to ask questions about REDD+ and discuss the project’s impacts.

Mr. Solís’ case study underscores the importance of gathering the necessary information for an FPIC process. In the Guna case, understanding the local context and working through the traditional decision-making structure to develop a project helps ensure that it is not imposed from the outside. When the Guna people make their final decision on whether to proceed with the proposed REDD+ project, it will be a community decision that respects their rights and processes.

Stage Two: Collaborate on Design and Implementation

Kanyinke Sena from Kenya’s Ogiek community pays special attention to how indigenous peoples participate in the design and implementation of forest-related conservation projects. An indigenous lawyer and member of the UN Permanent Forum on Indigenous Issues, he is no stranger to concerns over respecting community rights.

As a member of CI’s Indigenous Advisory Group, Mr. Sena conducted an FPIC case study focusing on these exact issues. “Operationalizing Free, Prior and Informed Consent within REDD+ Projects in Kenya” describes the country’s context and national REDD+ strategies. In his study, Mr. Sena noted that “while the [Kenyan] constitution does not specifically mention FPIC, it provides the necessary frameworks for anchoring an FPIC process.”

Mr. Sena then examined FPIC elements within one reforestation project in particular, exploring women’s roles in planting and tending young seedlings. The project considered men’s and women’s traditional responsibilities in managing forests and their opinions on which tree species to plant and how project benefits should be distributed within the community. But Mr. Sena’s study also noted that some women in the project area did not feel empowered to freely input into the project consultation processes. “Simply put: The fact that women had attended meetings did not always amount to them actually voicing their expectations and concerns or getting their views heard and taken into account.”

For an FPIC process to be successful, it must consider how all community members collaborate on the design and implementation of the project while also being respectful of traditional cultures. In this case, the women were happy with the project overall, but there was still room to better address their concerns through women-only meetings. Understanding barriers to participation and creating ways to address them within a project is key within this stage.

Stage Three: Ensure Accountability

Ramiro Batzin’s work as head of the indigenous organization Sotz’il and as a member of the Indigenous Advisory Group requires building bridges with many different groups, from his indigenous Maya Kaqchikel community in the highlands of Guatemala, to the national government as it engages in international policy discussions. To maintain those bridges, conflicts that are bound to arise must be addressed in an appropriate and timely manner.

Mr. Batzin reflects on this key aspect of FPIC in his case study, “Applying Free, Prior and Informed Consent in the Implementation of REDD+ on Indigenous Lands and Territories in Guatemala.” His study highlights the importance of addressing conflicts, for instance over natural resource use and boundaries, that may arise between communities and outside groups, or between different community members. He makes the point that this must be accomplished using the existing structures and processes within the community and with appropriate capacity to address conflict. The different bodies that address problems within the Maya Kaqchikel community vary depending on the issue and its degree of severity; navigating through each requires an understanding of their different roles and how conflicts are escalated.

As the foundation for all FPIC processes in the Maya Kaqchikel community, Mr. Batzin outlines the different principles that guide community members. “The Mayan principles are: respect, solidarity, decency, the value of words, reciprocity, the sense of community. These need to be recreated, recovered, practiced, reached by consensus and felt in the heart, thoughts, and actions.” This is the starting place for an FPIC process in the Maya Kaqchikel community. Understanding these principles and their role in the local culture is essential to effectively address conflicts, ensure accountability, and build the bridges necessary for collaboration.

Challenges and Opportunities

One of the biggest challenges to a ‘true’ FPIC process is that last letter: consent. Implicit in the definition of consent is the understanding that if it can be given, it can also be withheld. But most definitions of FPIC state this explicitly, clearly delineating the boundaries of what is and what is not acceptable. In truth, FPIC is neither something as simple as a decision-making process nor as straightforward as a veto mechanism. Implementation lies somewhere in the grey area between these two—hopefully in a shade everyone involved has agreed to.

At a recent meeting in Montreal, a colleague expressed her opinion that NGOs (non-governmental organizations) are often stuck between a rock and a hard place when it comes to implementing FPIC. This is not an unfair assessment of the situation. To ensure integration and to enable success, large international organizations such as Conservation International (CI) work with a wide variety of actors, from indigenous communities to national and regional governments to local and global business. Respecting the rights of our indigenous partners is an essential and indispensable part of our collaboration with them, but we must also recognize that we are never the only participants in the process.

Building trust between all partners is an important part of any project, but even more so when the partners are so diverse, with very real distinctions between their power and ability to enforce decisions. When working with partners who may initially be reluctant to adopt FPIC, it is important to provide a solid framework and proven results while pushing the boundaries of their understanding. However, as only one piece of the puzzle, conservation organizations, including CI, cannot push so hard that we are pushed away. By following our own best practices, including our guidelines on FPIC, we can encourage others to do the same.

Another main challenge to implementing an FPIC process is the level of capacity, both in terms of knowledge and resources. In many cases, all of the actors may need access to more information and education about rights, roles, and responsibilities. Access to information may initially seem like an easy need to fulfill. However, behind this need often lies more complex needs: the need to provide information in a language indigenous peoples understand, often different from official language of the country, the need to respect timeframes and seasonal calendars, sometimes very divergent from bureaucratic timetables, or the need to demonstrate to all parties that the voices of women are an important part of the conversation. These particular challenges must be overcome by building numerous bridges—between knowledge and stakeholders, between different actors, between different cultures, languages, and genders. An effective FPIC process helps to span these divides and make partnerships more effective at both conserving biodiversity and improving livelihoods.

For FPIC to work in practice, all of the actors involved must maintain a careful balance of idealism and realism. Rights absolutely must be respected, but political realities must also be acknowledged. By acknowledging the challenges that must be faced and working collaboratively to address them, partners can overcome the obstacles inevitable in implementing FPIC.

FPIC: An Adaptable and Practical Solution

In our work to fully embrace our mission of empowering societies to responsibly and sustainably care for nature, Conservation International developed these FPIC guidelines. Creating them was a direct response to our working reality—especially on the ground with communities, but also in capital cities with government officials, and at the table with business leaders. As we begin implementing them around the world, they will help ensure that we create processes respecting FPIC in our collaborations with communities. While they were developed for CI itself, they provide all of our diverse partners with a tool for doing the same.

From understanding and respecting the underlying rights, to recognizing that close collaboration with indigenous partners improves outcomes, to respecting the bounds of national legislation, FPIC requires a thoughtful and measured approach. As a practical tool, we hope the guidelines will be useful in increasing dialogue and collaboration. As a best practice, we hope that they will increase respect for indigenous rights and recognition of their invaluable contributions.

Many of the places where CI works are stunningly beautiful. They inspire awe of the natural world and hope for tomorrow. To our indigenous partners, these places often represent home, cultural continuity, and history. It is only right to seek a deeper understanding of FPIC in a natural setting. Like a deep mountain lake, each FPIC process is a reflection of its surroundings, and no two are alike. When respected, it provides many benefits to everyone, and though it is not an easy hike, the view is worth the climb.